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Written Proposal to Complete Master of Arts In Title Page Thesis on Adverse Possession Candidate : Kathleen O’Dwyer BA PgDip in Law Submitted for the award of MA in Law Dublin Institute of Technology Supervisor Ruth Cannon BL Candidate principally affiliated to Dublin Institute of Technology Year of submission 2009. Volume One i Abstract Adverse possession has been described as a “debilitating”1 experience and acts as a “blunt instrument”2 of necessary legislation in modern society. It is a device that ends litigation. Legislation for abolition would lead to greater societal difficulties. Statistically land theft is rare and given that ownership of property carries a duty an owner should be vigilant. One sentence on the property folio could alert an owner of the danger of inadequate fencing. Although aspects of notification as in the Land Registration Act 20023 may be more desirable. The area of compensation payable to the title holder would be unworkable and could lead to acrimonious disputes. However the value of land does not at present enter into squatter activity although it appears central to the dissenting judgements in Pye4. Pye needs to be seen in isolation as a very unusual case. Adverse possession of company land in Ireland is not an issue according to the PRAI. The Statute of Limitations 1957 operates fairly in protecting land ownership. Although land purchased from the public purse should carry the longer recovery period of thirty years, the timeframe of twelve years is adequate in relation to private property. The timing of activity on the ground can be assisted by photographs from the OSi.5 The Constitution adequately protects private property and better access to justice could be achieved if court costs were tax deductible for individuals as they are for companies. In summary the survey analysis concluded that squatter behaviour is repetitive if left unaddressed. The lack of professionalism amongst those involved in land measurement needs resolution. Suggestions in relation to the use of GPS satellite maps in the Green Paper Proposing Reform of Boundary Surveys could lead to confusion and in the wrong hands further land theft. A better proposition would be to utilise the OSi mapping that dates back to the early 19th century combined with a moderate archaeological survey. Overall the doctrine of adverse possession is an essential mechanism acting to stabilise title and has traditionally worked well although sometimes unfairly. 1 Charleton Denise. Smithfield, Dublin, April 2007. RTE News Bulletin following settlement of the Charleton/Kenny case 2 McDermott Paul Anthony quoted in The Irish Times Holland Kitty, Whose land is it anyway? 16th June 2007. 3 Land Registration Act 2002. 4 JA Pye(Oxford) Ltd v. United Kingdom [ECtHR no.44302/2, Grand Chamber August 30, 2007.] 5 Ordinance Survey Ireland, Phoenix Park, Dublin. ii Declaration Page I certify that this thesis which I now submit for examination for the award of MA in Law, is entirely my own work and has not been taken from the work of others save and to the extent that such work has been cited and acknowledged within the text of my work. This thesis was prepared according to the regulations for postgraduate study by research of the Dublin Institute of Technology and has not been submitted in whole or in part for an award in any other Institute or University. The work reported on in this thesis conforms to the principles and requirements of the Institute’s guidelines for ethics in research. The Institute has permission to keep, to lend or to copy this thesis in whole or in part, on condition that any such use of the material of the thesis be duly acknowledged. Signature _______________________________Date_________________ Candidate iii Acknowledgements I wish to extend my sincere thanks to Ruth Cannon for her encouragement and suggestions. I also acknowledge time given by Fergus Ryan and Elaine Fahey, regarding orientation and research techniques and all those who replied to my questionnaire and face to face questions with tolerance and exactitude. I mention particularly Catherine Tracey and Frank Treacy of the Property Registration Authority who helped supply up to date vital statistics. iv Table of Contents Page No Introduction 3 Chapter One 5 1.1 Historical background 5 1.2 Possession 7 1.3 Parliamentary Conveyance Theory 9 1.4 Adverse Possession- General 13 1.5 Logic for its introduction and necessity 16 1.6 Adequacy of law re the protection of private property 17 Chapter Two 19 2.1 Comparative Law - Ireland and the UK 19 2.2 Property Registration Authority, 32 2.3 The Land and Conveyance Law Reform Bill and other Law Reform Commission Reports related to land law and adverse possession. 40 2.4 Pye decision and fallout 47 2.4.1 Review of dissenting decisions in Pye 50 2.4.2 Changes in law in the UK since Pye 51 2.5 Dunne -v- Iarnroid Eireann - Irish Rail & Anor 53 1 Page No Chapter Three 3.1 Other Cases 57 3.2 Unacceptable behaviour in Land Disputes – Penalties 60 3.3 Paid Expert Witness 62 3.4 Barrister immunity in civil cases and duty of solicitors to the administration of justice 63 3.5 Court Costs deductible for tax purposes 65 Chapter Four 4.1 Charleton Kenny case, the Dunsink Lane case. 66 4.2 Lord Haughey case in Nthn Ireland 67 4.3 Boundary Disputes 68 4.4 Irish Government submission to the ECHR in Pye for the retention of the doctrine 77 4.5 Protection offered to future purchasers 79 4.6 Cully Tragedy in Co Westmeath 79 4.7 Alternative Dispute Resolution 80 4.8 Survey and analysis 81 Conclusion 94 References/Bibliography/Appendices i-vii 2 Introduction Adverse Possession concerns rights acquired over land through exclusive use and possession adverse to the ownership rights of another person. Denise Charleton described the experience as debilitating following the settlement of the Charleton/Kenny land dispute in 2008. In contrast the Dunsink Lane settlement received little publicity, when travellers were paid in excess of twenty million pounds by the State to vacate property the size of Phoenix Park. Lord Haughey’s claim on neighbouring land in Northern Ireland failed. However, many paper title holders are affected by squatters without ever realising their land is being seized. This happens through genuine error; misreading a will, confusing parcels of land, a fence in the wrong place or the owner remaining ignorant of the squatter’s true intention. Issues around the Pye1 decision and questions arising from the endorsement of the doctrine are explored. Possessory title or adverse possession as it is commonly called is a painful and expensive issue to address and while law is not emotional the terminology used to describe squatter activity and wrongdoing are intrinsically linked to position the activity to the realms of unlawfulness. This thesis questions: ¾ Where the value of adverse possession lies in modern society and has it outlived its necessity? ¾ Should it be allowed in very limited circumstances? ¾ Should there be an onus on the authorities to protect private property further given the high cost of land and housing? 1 JA Pye (Oxford) Ltd v. United Kingdom [ECtHR Application 44302/02, November 15, 2005.] 3 ¾ How does the Statute of Limitations 19572 operate to protect the rights of the squatter and the paper title holder? ¾ Does the Constitution adequately protect private property? Squatting is controversial, argumentative and at variance with a reciprocal approach to the ownership of land for value. Whatever the view on the doctrine, it remains on the Statute Books and submissions to the ECHR by the Irish Government during Pye3 urged retention in particular circumstances to settle and quieten title. It acts in a beneficial way to protect future owners from old extinguished and stale claims to land that could be made for illogical, cruel or unjust reasons. “The policy of limitation was stated by Streatfield J, in R.B. Policies at Lloyd’s v Butler4 “It is a policy of the Limitation Acts that those who go to sleep upon their claims should not be assisted by the courts in recovering their property, but another, and I think equal policy behind these Acts, is that there shall be an end of litigation”……” This thesis attempts to discern the logic of some of the judgements made distinguishing areas of comparative law and how time, evidence based information and the Constitution and the Convention may act in Ireland to better protect the paper title holder. Appreciation is extended to all who participated in the survey part of this research, newspapers, their readers and litigants. 2 Statute of Limitations 1957. 3 JA Pye (Oxford) Ltd v. United Kingdom [ECtHR Application 44302/02, November 15, 2005.] 4 [1950] 1 KB at p. 81, [1949] 1 All ER, at p. 229; A’Court v Cross (1825) e Bing at p. 332, per Best CJ “It is an Act of peace. Long dormant claims have often more of cruelty than of justice in them” quoted in Maudsley R H and Burn E H Land Law: Cases and Materials (London, 1980) at 151 4 CHAPTER ONE 1.1 HISTORICAL BACKGROUND The Limitation Act, 16231 set out time limits for simple contract debts and periods of limitation for recovery. It ran against the lord of a manor as well as against any other person. If a cottage was built upon waste in defiance of lord and quiet possession had been had for twenty years, it was within the 1623 Act; but if built at first by the lord’s permission or any acknowledgement, though it were 100 years since that statute would not run against the lord.2 The Prescription Act, 1832 is also concerned with time limited for establishing rights of common and other profits.
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